English Court of Appeal Dismisses Convicted Defendant’s Application For Anonymity and Held the Imperative In Favour Of Open Justice Must Prevail

05 November 2013

Author: Olivia O'Kane
Practice Area: Media and Defamation

The starting point for an application to restrict reporting of court cases is the general principle that there should be open justice.  It is well established that a court will only agree to derogation from that general principle if there is clear and cogent evidence which establishes that such derogation is strictly necessary in the interests of justice.  It shall always depend on the specific facts of each case.

Facts

On 28 February 2006 Mr Stephen Fagan [SF] was sentenced to 14 years imprisonment for two offences of rape and one offence of administering a drug with intent to commit an indictable offence.  The offences were described by the Court as ‘very serious’.

The offences had taken place in England but the defendant had been from and continued to reside in Airdrie Scotland.  At the time SF was married and had two daughters.  The offences of SF had a large impact on his family because his offending became known in Airdrie Scotland and his daughters suffered harassment and unpleasantness at school and, at times, in the community, despite the fact that, of course, they had nothing to do with their father's crimes.

One of SFs daughters is an adult but the second remains a minor, aged 16.  Their mother, SFs wife had died in 2012.  A previous court acknowledged that the lives of SFs daughters have been severely disrupted given the imprisonment of SF, the harassment and unpleasantness they then suffered and, most recently, the deaths of their mother and grandmother in quick succession.

In 2008 SF requested a transfer to a prison in England and in January 2012 he requested a transfer back to Scotland but it was refused.  On 10 September2012 SF reached the date of his entitlement to have automatic release on licence and he wanted to be released on licence in Scotland but he was released in England inspite of his suggestion that he would end his own life if he were not transferred back to Scotland.

Anonymity Application

Prior to his release SF lodged an application to judicially review the decision refusing him to be released on licence in Scotland.  Following leave being granted in February 2013 to judicially review the decision SF made an application for an order anonymising him in any reporting of the proceedings.

Prior to the hearing in respect of the anonymity order the Airdrie Scotland and Coatbridge Advertiser ran a sensationalist front page story and partly inaccurate article about SFs attempts to be resettled in his home town.

There was an inaccurate allegation in the article that the defendant had previously been charged with ‘molesting young girls’.  The newspaper subsequently corrected this error six weeks after publication of the original story.

The defendant’s two daughters supported SFs desire to return to Airdrie and lodged witness statements setting out the considerable impact that reporting had made on their lives and one daughter felt she was unable to visit her mother’s grave as a result of the publicity.

In dealing with SF’s transfer request, the Northumbria Probation Trust (NPT) referred to considerations of adverse publicity, emotional vulnerability of one of the daughters and of vigilante action all relevant to the risk in transferring him.

Test Applied to Anonymity Application

The defendant relied upon the Article 8 Convention Rights of himself and of his daughters whereas the court balanced these rights with the Article 10 Convention rights of the public, press and other media.  Neither rights are absolute and neither of which take precedence over the other and thus the rights had to be balanced according to the particular facts of the case.

At first instance in the High Court it was held:

“It is clear that derogation from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice.  They are wholly exceptional…derogations should, where justified, be no more than strictly necessary to achieve their purpose.

Further, the burden of establishing any derogation from the general principle lies in the person seeking it.

It must be established by clear and cogent evidence”.

What was of particular significance was that the High Court judge acknowledged that withholding anonymity would permit an active campaign in the media in Airdrie and Lanarkshire to prevent any attempt to resettle SF with his daughters.  Irwin J regarded it as “certain” that this campaign might involve “very considerable” public hostility to SF, but that was a natural consequence of his offending.

Indeed, he recognized that it could involve hostility to his daughters and that there was a risk that it might inhibit the resettlement of SF “with or near his neighbours”.  It was also recognized that the legitimate public interest in the constitutional issue regarding resettlement of serious offenders was in question.  Despite this, it was held by the High Court that there would in any event be speculation and the “undesirable consequences of publicity” would develop at some stage.  It was concluded that open justice should prevail and Irwin JJ declined any reporting restrictions and the anonymity order.

On Appeal the English Court of Appeal held:

“He has been convicted of very serious crimes.  His trial was public and his conviction and sentence were public knowledge. 

It would be known to the public that after he had served half his sentence in prison, he would be released on licence and under the management of probation service. 

In those respects SFs position is no different from any other prisoner.  Many defendants convicted of serious crimes also have wives or partners and children; they are often young children. 

The possibility of a hostile reaction against the family of an offender who has committed a serious sexual or violent offence must be general.  Again in that respect, SF is in no different position from other serious offenders who must be released at some stage if they have been given a determinate sentence.

Therefore something particular has to be found in the circumstances of this case to justify derogation from the general principle”.

The Court of Appeal considered that the fact there may be some type of hostile press campaign attempting to ensure the offender is not released in a particular community is not justification for a derogation from the general rule of open justice even if it would impinge on Article 8 rights.

Similarly it was held that even if such press coverage would impinge upon rehabilitation and resettlement this was not considered to be a justification to derogate from the principle.  This was considered to be a risk in many serious offenders’ cases.

The Court finally considered the impact on the minor daughters Article 8 rights and concluded that the daughters had already been identified in press reports and there was a risk of speculation in the media and thus no derogation was justified on this factor.

It was held on appeal that in all the circumstances of the case the imperative in favour of open justice must prevail.

Commentary

There was no question of a “real and immediate” threat of violence or risk to life to the defendant in this case.  As such Article 2 and 3 of the European Convention on Human Rights were not engaged.

This resulted in the courts undertaking a balancing exercise of two equal and competing rights, that of Article 8 and Article 10.  The balance on the facts of this case tipped in favour of publication.

Northern Ireland anonymity applications are more ordinarily grounded upon absolute Convention rights and as such the courts do not have to undertake a balancing test.  Instead the Courts assess on the evidence whether Article 2 or 3 has in fact been engaged.

The courts in Northern Ireland have recently carried out an intense focus on the facts of anonymity order cases and are applying scrutiny to the question of whether there is “clear and cogent evidence” substantiating a claim that Article 2 or 3 has been engaged.  For example the BBC[1] and UTV[2] recently reported that individuals who had reporting restrictions against naming them were lifted when the courts considered that those issuing the threats knew their identity already. 

[1] http://www.bbc.co.uk/news/uk-northern-ireland-24718642

http://www.bbc.co.uk/news/uk-northern-ireland-24132395

[2]http://www.u.tv/News/Rape-accused-named-after-ban-lifted/cae4015d-a974-4565-b217-a92283692733

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